State v. Keeler

• Decision Date: 10 April 1916
• Docket Number: 3740.
• Citation: 156 P. 1080,52 Mont. 205
• Parties: STATE v. KEELER.
• Court: Montana Supreme Court

156 P. 1080

52 Mont. 205

STATE v. KEELER.

No. 3740.

Supreme Court of Montana

April 10, 1916

Appeal from District Court, Gallatin County; Ben B. Law, Judge.

Lewis Keeler was convicted of statutory rape, and from the judgment of conviction and an order denying new trial, he appeals. Reversed and remanded.

Sanner J., dissenting.

Geo. D Pease, of Bozeman, for appellant.

J. B Poindexter, Atty. Gen., and J. H. Alvord, of Helena, for the State.

HOLLOWAY J.

The appellant, convicted of statutory rape, assigns 43 alleged errors, presenting seven different grounds upon which he claims the judgment should be reversed. These grounds we shall briefly consider in their order:

1. It is contended the information does not state a public offense because, though charging "rape under the age of consent," in that the appellant did on the day named willfully, unlawfully, and feloniously have and accomplish an act of sexual intercourse with and upon the complaining witness, then and there a female under the age of 18 years to wit, of the age of 13 years, and not then and there the wife of the appellant, there was a fatal omission to charge an assault or to aver that the complainant was a human being. Counsel does not argue this matter very strongly, and we commend his discretion in that regard. The purpose of an information is to inform the accused of the nature and cause of the accusation against him. To do this it was not necessary in the present instance to allege an assault; and, as every one else possessing rudimentary intelligence would know that "rape under the age of consent upon a female [naming her] not the wife," etc., necessarily implies a human being as the victim, we cannot assume that the appellant or his counsel were left in the dark upon the subject. The information is sufficient. People v. Gilbert, 199 N.Y. 10, 92 N.E. 85, 20 Ann. Cas. 769, and note 775.

2. Complaint is made that the court received evidence of other acts of intercourse between the appellant and the prosecutrix occurring within six weeks after the act relied on for a conviction. The admissibility of such evidence in cases of this character is not now open to question. State v. Harris, 51 Mont. 496, 154 P. 198; People v. Koller, 142 Cal. 621, 76 P. 500.

3. It is urged that the appellant was not given a fair and impartial trial because of some remarks by the district judge. We have considered all the instances specified, and find that the remarks complained of were elicited by the overzeal of appellant's counsel. We are unable to see that they were inappropriate under the circumstances. It may as well be understood that the trial judge possesses functions somewhat greater than those of a silent moderator, and that it is his right and his duty to see that the witnesses are protected from misrepresentation, that they are understood, and that the trial itself is conducted with reasonable expedition. We do not feel that the presiding judge abused that discretion in the present case.

4. Alleged undue restriction of the right of cross-examination is assigned. Only one instance is specified, and that instance relates to a matter which was wholly and manifestly immaterial.

5. The sufficiency of the evidence to justify the verdict is attacked solely upon the ground of failure to prove the venue. We think it barely possible to deduce from the testimony that the act occurred in Gallatin county as charged, but, since the cause must be remanded for a new trial, further consideration of this matter will be omitted.

6. Complaint is made of the refusal of the following instruction:

"You are instructed that this class of prosecutions are attended with great danger and afford an opportunity for the display of malice and private vengeance. Charges of this kind may be easily invented and maintained, and the jury are cautioned of the danger of a conviction on the sole testimony of the prosecutrix. And if, after considering the testimony in the case, you have any reasonable doubt of the guilt of the defendant, then it is your duty to acquit the defendant."

Without giving any reason or citing any authority, counsel contents himself with the statement that this instruction should be given in every trial for rape. We differ, and question its propriety in any case. The court's instruction No. 10 went as far as any cautionary instruction ought to go, and there is nothing in this record to warrant the suggestion that private malice or revenge were at all involved.

7. The giving of instruction No. 15 is urged as error, but upon the theory that other acts of intercourse than the one alleged were inadmissible. As this theory is wrong, the objection must fall.

8. The principal ground of complaint is that the defendant was denied a public trial. This cause was brought to trial on November 19th. On the morning of November 20th a jury was secured, and, when the first witness was called, the following proceedings took place:

"The Court: On account of the nature of the case the bailiffs are instructed not to allow any one else in the courtroom. Those who are in the courtroom now may remain until they get ready to retire, but after you once leave you cannot return, and no one else will be allowed to come in.

Mr. Pease: We object to your honor's excluding the public from a trial of this cause, and ask that your honor admit all persons of mature age to witness the trial or to be present at this trial if they so desire.

The Court: The request is denied. This rule is not meant, however, to apply to officers of the court and newspaper men. If the defendant wants the newspaper men in, let them in. I will except newspaper men; that is, if the defendant wants them; and, if he does not want them, we will let them stay out."

The trial was not concluded until November 21st. In the minutes of the court for the 20th, approved and signed by the judge who made the order, is this recital:

"Upon application of the county attorney all persons except court officers, attorneys, doctors, and reporters are excluded from the courtroom."

It would seem that the members of this court ought to be able to determine from this record whether a reasonable representation of the general public was or was not permitted to witness the trial. If necessary, we would assume that the court enforced the order as made; but the minute entry furnishes ample proof of that fact. We will not assume, however, that the spectators present when the order was made, on the morning of November 20th, stayed in the courtroom continuously throughout the day, throughout the night following, and so much of the 21st as elapsed until the trial was concluded. The order recites that it was made "on account of the nature of the case." The order is inconsistent in itself. If there was anything in the nature of the action or in the evidence which might tend to corrupt the morals, it would seem that the same protection was due to those present when the order was made, as to others who might seek admission. Just why those then present were permitted to stay while others similarly situated were excluded is nowhere explained. In our judgment, the order was made capriciously, or it is to be treated as excluding the public from the trial for no other reason than that in the judgment of the court the evidence adduced would be unfit for people of mature age to hear. We are bound to accept the latter of these alternatives, and, though the motive which prompted the order may have been ever so worthy, the order itself is indefensible.

The Constitution declares that in all criminal prosecutions the accused shall have the right to a public trial. Section 16, art. 3. Just what is meant by a public trial has been the subject of some discussion; but, with a single exception, we undertake to say that no court of last resort in this country has ever sustained an order of the character of the one before us, when timely objection to it was interposed.

People v. Hall, 51 A.D. 57, 64 N.Y.S. 433, by an intermediate court of New York, is cited to sustain the lower court here. In making the order the court in that case said to counsel for the defendant:

"If there is any person * * * you desire to have in the courtroom for the protection of your client's rights, the court has no intention of excluding any such person." We are also informed in the opinion that:

"During the trial persons were admitted on the suggestion of the defendant's counsel, and the court made it plain that any people the defendant desired to attend would not be excluded."

Further in the course of the opinion the court said:

"That the protection of a public trial must be given to every defendant charged with a crime is obvious. No court in this nation has ever held otherwise, so far as I am able to ascertain. That principle must be held unimpaired, but its retention does not entirely wrest from the trial judge the discretion to conduct the trial consonant with good morals, common decency, and in an orderly manner."

Whatever else may be said of certain of the court's observations, the facts differentiate the New York case from the one before us.

In Reagan v. United States, 202 F. 488, 120 C. C. A. 627, 44 L. R. A. (N. S.) 583, the Circuit Court of Appeals for the Ninth Circuit approved an order excluding the public from a certain trial for no other reason than as stated by the trial judge:

"I believe many are here out of morbid curiosity; second, I feel that the jurors in the box can listen to the testimony better if not bothered by the people in the courtroom; and, in the third place, I am not feeling good myself this morning, and I can listen to the testimony of the witnesses and objections of counsel better than if I am bothered with noise in the

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